Xphox

Located at: Globe and Mail

Pot possession not illegal, judge rules
By COLIN FREEZE
CRIME REPORTER

Friday, January 3, 2003 – Print Edition, Page A1

Possessing marijuana is no longer illegal for anyone in Canada, an Ontario judge ruled yesterday.

In April, police arrested a 16-year-old truant in a park carrying five grams of it. He was charged with possession of marijuana.

Yesterday, he was cleared of that charge when Judge Douglas Phillips of the Ontario Court in Windsor agreed with the young man's defence: Federal laws against marijuana possession are no longer valid.

The decision does not bind other judges in similar cases, but defence lawyers are expected to pick up the argument.

Justice Minister Martin Cauchon has pledged to introduce revised marijuana legislation by spring, but a government spokesman said that yesterday's ruling may prompt politicians or government lawyers to deal with it.

"We need to address it," said Jim Leising of the Department of Justice criminal-prosecutions department.

Unlike recent cases in which chronically ill defendants persuaded judges to give them access to marijuana, the teenager did not argue that he has an ailment. He used a legal opening created in 2000, when an Ontario Court of Appeal judge ruled Canada's marijuana-possession law invalid because it did not allow Terry Parker, an epileptic, and other chronically ill people to smoke it to lessen their symptoms.

The judge, however, delayed that ruling's effect for one year in hope that the government would introduce a medicinal-marijuana law.

But the government did not. Instead, the cabinet issued regulations for access to medicinal marijuana one day before the year-long grace period ended.

Mr. Parker said yesterday he is happy for the healthy teen.
"I consider marijuana to be preventive medicine," Mr. Parker said.

"It's a good decision."

At the teenager's trial, his defence lawyer, Brian McAllister, argued that a cabinet order is not what the judge who decided Mr. Parker's case had in mind. Nothing less than new laws by Parliament had been called for; therefore, marijuana-possession laws remained invalid.

Mr. McAllister said that as far as he knows, no other lawyer has argued this.

Now that it has proven successful, he expects other lawyers to make similar cases.

In his decision, Judge Phillips wrote that "this is simply not the sort of matter that Parliament can legitimately delegate to the federal cabinet, a Crown minister or administrative agency."

He says in the 16-page ruling that the appeal court's declaration that struck down marijuana-possession laws "is now effectively in place."

Advocates for the use of marijuana seized on Judge Phillips's decision swiftly.

"Since Parliament did not appeal the Parker decision and did not amend the law, there is currently no law against possession of cannabis in Ontario," Ontario Consumers for Safe Access to Recreational Cannabis says in a statement.

The group urged Ontarians who are charged with possession of marijuana after today to contact it, and suggested that anyone charged may be able to sue for false arrest and malicious prosecution.

Observers caution that Canadian dope-smokers should not push their luck by lighting up in front of police officers.

"You could try the argument in Ontario. It's not binding on other courts. It's maybe persuasive to a fellow judge sitting at the same level," said John Conroy, a Vancouver lawyer fighting a possession case at the Supreme Court level.

(That case and others were put on hold last month, as the Supreme Court waits to see whether the Justice Minister produces revised legislation.)

Mr. Conroy said that in Ontario, defendants could take a chance on whether any particular judge would agree with yesterday's decision, but Judge Phillips's reasoning would carry less clout in other provinces.

"In B.C., this case would have even less authority," Mr. Conroy said.

"At the same time, you might convince the Provincial Court judge that Phillips is right."

Mr. Conroy pointed out that marijuana is somewhat decriminalized in B.C.: Crown prosecutors prefer making deals rather than prosecuting in such cases, and when the defendant's case goes to trial, B.C. judges grant absolute discharges.

Although the law against marijuana possession remains a legal quagmire, the teenager involved is not yet finished with the courtroom.

He is to be tried on breach-of-probation charges stemming from the same arrest.

Xphox

Located at: Globe and Mail

Ottawa appealing pot possession verdict
By COLIN FREEZE
From Saturday's Globe and Mail

Ottawa is appealing a ruling that found Canada's marijuana-possession laws are no longer valid.

In a notice filed Friday, the Crown says it will try to show an Ontario judge erred when he concluded that a 16-year-old broke no laws when he was caught carrying five grams of marijuana this spring.

"Because the decision created so much public interest, we thought it best to quickly deal with the issue and clarify the law as quickly as we can," said Jim Leising, director of the Justice Department's prosecution service in Ontario.

He announced the decision to appeal yesterday, one day after Judge Douglas Phillips in Windsor dismissed possession charges against the teen.

Judge Phillips agreed with the defence lawyer that a previous court decision rendered federal laws against marijuana possession invalid.

An appeal is a matter of some urgency for the Justice Department. As things stand, the validity of a marijuana law which many people are accused of breaking is an open question.

Brian McAllister, the teenager's lawyer, says the case he won on Thursday leaves Ontario's legal system in a quandary.

"I don't see why any judge would want to hear any other cases involving the issue until this appeal has been adjudicated," Mr. McAllister said in an interview yesterday.

The appeal will hang upon the finer points of the law. Both the Justice Department and Mr. McAllister can use the legal arguments from the initial hearing.

A judge in the Ontario Superior Court in Windsor will hear the appeal, likely within a few weeks. No date has been set.

The confusion created by the teenager's case has its roots in a ruling made two years ago.

In July, 2000, an Ontario Court of Appeal judge ruled that Canada's marijuana-possession laws are unconstitutional because they don't allow chronically sick people access to a substance that could control their suffering.

Though the ruling in effect struck down the possession law, the judge explicitly delayed its effect for one year. The hope was that Ottawa could come up with a more compassionate scheme in the interim.

The federal cabinet responded by putting new regulations in place. But the new rules may not be sufficient.

The judge in the teenager's case ruled this week that the appeal court had called for nothing less than new laws passed by Parliament, and that regulations issued by the federal cabinet didn't carry enough weight.

Judge Phillips ruled that because the underlying constitutional issue was never properly addressed, the possession laws remained invalid regardless whether the person caught with cannabis was using it for medicinal or recreational purposes.

Xphox

So yeah... Go Windsor!